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[107] Mr. St. Marthe is only entitled to an award of non-pecuniary damages if he meets the requirements of section 267.5 of the Insurance Act. Regulation 381/03 sets out the criteria for determining if a person has :
4.2 (1) A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:
1. Impairment must,
i.substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
ii.substantially interfere with the person’s ability to continue training for a career in a field which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or
iii.substantially interfere with most of the usual activities of daily living, considering the person’s age.
2. For the function that is impaired to be an important function of the impaired person, the function must,
i.be necessary to perform the activities that are essential tasks of the persons regular her usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
ii.be necessary to perform the activities that are essential tasks of the person’s training for a career in the field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the persons impairment in the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,
iii. be necessary for the person to provide for his or her own care or well-being, or
iv. be important to the usual activities of daily living, considering the person’s age.
3. For the impairment to be permanent, the impairment must,
i. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve.
ii. continue to meet the criteria in paragraph 1, and
iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.”
[108] Although decided before the passage of this regulation, the leading case is still Meyer v Bright, 1993 CanLII 3389 (ON CA). The Court stated at para. 16:
We conclude therefore that the appropriate approach in these cases is to answer sequentially the following questions:
1. Has the injured person sustained permanent impairment of a bodily function caused by continuing injury which is physical in nature?
2. If the answer to question number 1 is yes, is the bodily function, which is permanently impaired, an important one?
3. If the answer to question number 2 is yes, is the impairment of the important bodily function serious?
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18-004112 v Belairdirect, 2019 CanLII 22219 (ON LAT), <http://canlii.ca/t/hz9f5
[38] Therefore, the evidence is clear that although an assessment was completed by a qualified physician, Dr. Potter, of the applicant more than three months after the accident, but prior to the 2 year mark. Dr. Potter only provided different scenarios of projections that may apply to the applicant at a future point in time but did not explicitly conclude that the applicant is presently catastrophically impaired. In addition, neither Dr. McKillop nor Dr. Sanders concluded that MC has a combination of mental or behavioural and physical impairment that results in the 55% WPI threshold.
[39] Therefore the applicant has not met the first of the two additional criteria in s. 3.1(2)(b)(i) and his application is dismissed based on this finding alone.
[40] However, I now turn to the question whether the applicant’s condition is unlikely to improve to less than 55% of the whole person. The second part of the two part test. Notwithstanding that both parts have to be satisfied by the applicant for him to succeed.
Part 2 – s.3.1(2)(b)(ii) of the Schedule –Condition is unlikely to improve to less than 55%
2. The insured person’s condition is unlikely to improve to less than 55 per cent impairment of the whole person.
[41] I find that the evidence does not support the conclusion that the applicant’s condition is “unlikely to improve to less than 55 per cent impairment of the whole person.” To the contrary, the evidence established that MC was still expected to improve and had further surgeries that need to be scheduled which could improve his mobility. Given the lack of certainty from the applicant’s medical experts, I am left wondering if the applicant’s condition could possibly improve towards a percentage less than 55 percent WPI which would not make him catastrophic under criteria 7.
[42] Dr. Potter in his reports of March 5, 2018, and November 22, 2018, does not conclude that the applicant’s condition is “unlikely to improve to less than 55 per cent impairment of the whole person.” Dr. Sanders also does not come to this finding.
[43] Neither does Dr. McKillop in his report of February 12, 2018, conclude that the applicant’s condition is “unlikely to improve to less than 55 per cent impairment of the whole person.” In his addendum letter dated October 3, 2018, Dr. McKillop does state that: “With reference to my report of February 12, 2018, Mr. C.’s prognosis is quite poor. In my opinion, it is unlikely that Mr. C.’s health status would have changed by the end of 2018.” However, in my view, section 3.1(2)(b)(ii) of the Schedule, is more specific and requires an assessment be conducted by aphysician that determines the applicant’s condition is unlikely to improve to less than 55 per cent impairment of the whole person. This is quite different than saying generally that an injured person’s health status is unlikely to change as Dr. McKillop has done. The Schedulerequires that a physician draw a conclusion regarding a person’s accident-related impairments based on a calculation of WPI. As already stated above, it was also not possible for Dr. McKillop to draw any conclusions regarding WPI (and therefore whether the applicant is unlikely to improve to less than 55 per cent impairment of the whole person) since he did not do an impairment rating in accordance with theGuides, 6th ed. Finally, Dr. McKillop is not a physician (he is a psychologist) and on a strict and plain reading of s. 3.1(2)(b)(ii) only a physician is able to conduct the required assessment and come to a conclusion that the insured person’s condition is unlikely to improve to less than 55 per cent impairment.
[44] Therefore, the applicant also has not satisfied the second part of the two-part test in s. 3.1(2)(b)(ii) of the Schedule.
CONCLUSION:
[45] For the above reasons, I conclude on the balance of probabilities that the applicant has not established that he was catastrophically impaired under criterion 7 because he has not satisfied the additional two criteria in s. 3.1(2)(a) and (b) of the Schedule.
[46] As a result, subsection 3.1(1) paragraph (7) of the Schedule does not apply, as the applicant must comply with these two additional criteria before moving to a catastrophic determination before the two year mark after the accident. As such, I do not need to conclude whether the applicant meets the 55% WPI threshold under s. 3.1(1) paragraph (7) of the Schedule.